Andrew Stevenson: Speedy verdict in real slay ride of a trial

Andrew Stevenson is a Council Member, Scottish Law Agent

Jury trials around 200 years ago could be arduous affairs, continuing until concluded, with no overnight breaks, so once a juror began hearing the evidence, he was confined until the bitter end. It must have happened often that jurors lost concentration, stopped listening from fatigue or felt hurried into giving a verdict simply to escape the oppressive atmosphere of the courtroom, regardless of whether they had had time or energy properly to assess and consider the evidence.

In the Burke and Hare case, the evidence was especially problematic. There were serious hurdles facing the Crown in proving the crimes and, as matters transpired, the pair who sat in the dock were Burke and his bidie-in, Helen MacDougal. Hare had agreed to clype on them to save his own skin by immunity from prosecution. Only three charges of murder were laid against the accused. MacDougal was acquitted on a not proven verdict. Burke was convicted on one charge, for which he was executed in 1829.

The trial is considered one of the most remarkable in Scottish legal history, largely due to its gruesome subject matter. But one of its most striking features is that it was heard in the space of a day. Its timetabling was gruelling, starting at 10am on Wednesday 24 December 1828, into Christmas Eve and running non-stop, overnight, to the same time on Christmas Day.

Within that time, the court dealt with a plethora of complex and demanding issues and material. There was a preliminary objection to competency. That having been repelled, the jury heard the evidence of 18 Crown witnesses, including Hare.

The court then heard the submissions of the Lord Advocate. Burke’s counsel, the Dean of Faculty, began his speech at 3am and counsel for the co-accused, the redoubtable Henry Cockburn, at 5am.

According to the account of the eminent criminologist William Roughead: “At six o’clock in the morning, the Justice-Clerk began his charge to the jury, reviewing the whole evidence with a minuteness at once exhaustive, and at that hour presumably exhausting.”

The judge then explained the law, his charge lasting a total of two and a half hours. The jury retired, and returned its verdict after 50 minutes. The judge donned his black cap, sentenced Burke to death and “the Court then rose, having sat continuously for four and twenty hours.” It could have been worse; there were 55 names on the List of Witnesses; only a third were called.

Nowadays, it would take weeks to complete the trial, and it would not sit on Christmas Day. There are other differences too. One of the jurors was an “agent” (ie solicitor) in Leith Walk. He would be disqualified from jury service now. Furthermore, the offender would not be sentenced to be hanged, dissected or anatomised. There seems little doubt Cockburn had a grudging respect for Burke; in his memoirs, he makes a point of observing that on hearing the verdict Burke’s first reaction was to express relief at the acquittal of his co-accused, rather than dismay at his own fate.

In those days, jurors were obviously expected to be of strong mettle. By sharp contrast, The Jury Manual, which provides guidance to the Scottish judiciary on modern procedure, recommends that juries should not be asked to retire to give their verdict after 3pm.

Although the trial of Burke and his luckier cohabitant was swift, it proceeded nowhere near as rapidly as one that took place more recently, also at Christmas and also involving a notorious couple. During the collapse of the Communist regime in Romania, the former dictator, Nicolai Ceaucescu, and his wife Elena were accused of a variety of offences, including genocide. After a trial (of sorts) that lasted no more than an hour, they were convicted, and executed by firing squad on Christmas Day – exactly 30 years ago.

It is hoped that readers enjoy a considerably happier Christmas.

Andrew Stevenson is a Council Member, Scottish Law Agents Society